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Petitioner: KHUSHI MUHAMMAD AND ANOTHER VS Respondent: ALLAH RAKHA AND OTHERS
P L D 1963 W
P L D 1963 W. P. (Rev.) 31
Before Nasir Ahmad Member Board of Revenue West Pakistan
KHUSHI MUHAMMAD AND ANOTHER‑Petitioners
versus
ALLAH RAKHA AND OTHERS‑Respondents
Revision No. 96 of 1961‑62, decided on 9th July 1962, District Montgomery.
(a) Punjab Land Revenue Act (XVI of 1887)-----
-----S. 44‑Pre-sumption of correctness attaches to entries in record‑of‑rights Female shown as owner‑No presumption that she has only life, interest in the property.
(b) Mutation‑----
---Gift by female having life‑interest not void but voidable‑Mutation to be sanctioned in favour of donee on basis of registered gift deed.
Muhammad Iqbal Hussain for Petitioners.
Hasan Ali Shah for Respondents.
ORDER
Petitioner No. 2 Mst. Jiwani who is entered in the revenue records as owner of the property in dispute transferred it by means of a registered deed of gift in favour of Khushi Muhammad, petitioner No. 1. The collaterals of the husband oh Mst. Jiwani urged before the Assistant Collector that she had only a life‑interest in the property but in view of the registered deed of the gift and the actual transfer of possession which was verified to have taken place on the spot the Assistant Collector decided the mutation in favour of Khushi Muhammad. On appeal the Collector without any tangible evidence before hid concluded that a female should be presumed to have a life interest only in landed property and, therefore, the transaction wag ab initio void. Neither of these two propositions can be defended under the law; he nevertheless set aside the mutation. On revision the learned Additional Commissioner upheld the Collector's view. A second revision has now been filed before me.
The main point for consideration is whether there is any justification for the presumption that the donor‑widow had a life, interest in the property in dispute when the existing entries in the revenue record do not lay down any restriction of this kind in respect of her ownership. On the contrary the revenue records have a pre sumption of truth attached to them under section 44 of the Punjab Land Revenue Act and as far as the records relating to this case Indi cate that no evidence was produced to rebut this presumption. Even if it were assumed that the widow had a life‑interest in the property the transaction cannot be held to be void ab initio but it is merely voidable at the instance of an aggrieved party. There are several rulings of the learned Financial Commissioners distinguishing between voidable and void transactions. Neither of the two legal propositions on which the officers below have relied in rejecting the mutation are justified in law. I would accordingly accept the revision petition set aide the orders passed by the learned Additional Commissioner and the Collector and restore that of the Assistant Collector, 1st Grade. It is needless to add that it is still open to an aggrieved party to have recourse to a competent Court of civil jurisdiction and get the transaction avoided on the ground that the widow had only a life‑interest in the estate. But as far as mutation proceedings are concerned and these are summary in character without determining any party's rights, the registered deed of gift should be incorporated in the revenue records.
K. M. A. Revision accepted.